Paulraj vs State by Inspector of Police

M. Karpagavinayagam, J.—R.I. Paulraj, the Appellant herein, who was Sub Inspector of Police, Traffic Investigation Wing, Adyar, was

convicted for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced to undergo

rigorous imprisonment for one year and to pay a fine of Rs.2,500/- for having demanded a bribe of Rs. 400/ on 17.1.1991 from one Venkatesan

and received the same on 18.1.1991 as a reward for rendering help to the said Venkatesan for not harassing him in an accident case registered

against him u/s 337 I.P.C. Challenging the said conviction and sentence, the Appellant has filed this appeal.

Originally, the Appellant (A1) and one E.K.M. Selvam (A2) working in the Traffic Investigation Wing as a Constable, both were tried for the

said offences. A2 was acquitted and A1 alone was convicted as mentioned above.

The case of the prosecution in brief is as follows:

(a) P.W.2 Venkatesan is working in the State Bank of India, Nungambakkam. On 16.1.1991 after his office hours, he went to Drive-in-

Restaurant and took tiffin and then he was proceeding to his house in his motorbike. Near Thiru-vi-ka Bridge, a cyclist in a drunken mood

suddenly crossed the road and dashed against the motorbike and fell down. On intimation to the police. P.W.2 was instructed by the Constables

to take the said cyclist to Royapettah Hospital for getting treatment. Accordingly, he took the said cyclist Mani in an Autorickshaw and went to

Royapettah Hospital and admitted him there. When he returned to the place where the accident took place, he found that the motorbike got

damaged and the rear side mirror was found missing.

(b) Then, he went to the Adyar Traffic Police Station and gave a written complaint Ex.P2 to Mr. Paulraj, the Sub Inspector of Police, Traffic.

Adyar Police Station, the Appellant. P.W.2 narrated the entire occurrence to him. However, the Appellant said that a case would be registered

against him. Then, he asked him to put signature in the bail bond. P.W.2 gave his identity card to the Appellant. Then, P.W.2 was instructed that

next day he must go to the Motor Vehicle Inspector for getting the vehicle examined. He also handed over the notice Ex.P3 asking him to produce

the vehicle to the Motor Vehicle Inspector on 17.1.1991.When he came out of the Police Station. Mr. Selvam (A2). a Constable of the said

Station told him that he should pay an amount ranging from Rs. 300/- to Rs. 400/-to the Sub Inspector in order to the said cyclist Mani settle the

matter amicably.

(c) In order to verify whether actually the Sub Inspector of Police, Traffic Investigation Wing wanted the money, P.W.2 went on 17.1.1991 at

about 3.00 p.m. to the Traffic Police Station and told him about the demand of money by the Constable Sel-vani. The Appellant told him that he

should pay Rs. 400/-, so that the case against him would be amicably settled and that there would be no further harassment. When P.W.2 said that

he was not at fault for the accident, the Appellant insisted on his demand and told him that he should pay the amount on 18.1.1991 at about 12.00

Noon.

(d) Since P.W.2 did not incline to give bribe to the Appellant, he came to the Vigilance Office and gave the complaint Ex.P4 to the Deputy

Superintendent of Police. On his instruction, P.W.7 Thomas, the Inspector of Police received the complaint and registered the same for the offence

u/s 7 of the Act on 18.1.1991 at 10.00 a.m. At 11.00 a.m., he requested P.W.3 Su-rulimuthu. Junior Assistant, Tamil Nadu Spirit Corporation

and one Balachandran. Section Officer, Marketing Corporation to assist the trap. The entrustment mahazar Ex.P8 was prepared at about 11.45

a.m. The contents of the complaint was explained to P.W.3 Surulimuthu and another. The significance of the phenolphthalein test was explained by

conducting demonstration. The currency notes which were smeared with phenolphthalein powder were handed over by P.W.7, the Inspector of

Police to P.W.2 with instructions to give the same to the Appellant (A1) on demand and to give a signal by removing his spectacles. Accordingly,

P.W.2. P.W.3. P.W.7 and other Officers went to the Traffic Investigation Wing in a Jeep.

(d) P.W2 and P.W.3 alone went inside the Police Station. The Appellant after sending the other people out and asked P.W.2 whether he has

brought the money. P.W.2 removed the currency notes and handed over the same to the Appellant. He received the currency notes by the left

hand and then put them in the left side drawer of the table. Again gave another notice Ex.P5 for production of the vehicle before the Motor Vehicle

Inspector. P. Ws.2 and 3 came out of the Station. As instructed. P.W.2 gave a pre-arranged signal.

(e) Then, P.W.7 came to the scene. P.W.2 identified the Appellant. When P.W.7 introduced himself, the Appellant became speechless. Then,

Sodium Carbonate solution was prepared in two glass tumblers. As directed by P.W.7, the Appellant dipped his right hand fingers in one tumbler,

but colour of the solution was not changed. When his left hand fingers were dipped in the other tumbler, the solution turned violet. Thereafter,

P.W.7 asked the Appellant to produce the currency notes received from P.W.2. From the left side drawer of the table, the Appellant took out the

4 hundred rupee currency notes and handed over the same. P.W.7 compared the numbers of the currency notes with the numbers noted in Ex.P8

and found them to be the same. Then, he also recovered identification card Ex.P7 of P.W.2 from the Appellant.

(f) In the meantime, P.W.2 produced both the notices Exs.P3 and P6 issued by the Appellant. After the trap. Ex.P9 mahazar was prepared which

was attested by the witnesses and signed by the accused. Then, P.W.7 received the case records from P.W.4, the Inspector of Police. Traffic

Investigation Wing under whom the accused were working, relating to the accident case registered against P.W.2 in Crime No. 217/91. P.W.7

sent the solution bottles for chemical analysis. P.W.8 another Inspector of Police took up further investigation and examined the other witnesses.

He applied for sanction from Commissioner of Police for prosecution against both the Appellant (A1) as well as the second accused Constable

and filed the charge sheet.

On conclusion of trial, both the accused were questioned u/s 313 Code of Criminal Procedure The Appellant (A1) said that the amount was

received by him from P.W.2 towards the payment of fine for the case registered against P.W.2. The second accused pleaded innocence.

The trial Court on analysis of the materials available on record, concluded that the prosecution proved its case as against the Appellant and

convicted him for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Act. however, acquitted the second accused holding that the

offence was not proved against him. This judgment of conviction and sentence imposed upon the Appellant is challenged in the appeal.

Mr. Asokan, the learned senior counsel would make the following submissions:

There could not have been any demand by the Appellant on 17.1.1991 at about 3.00 p.m., since he was not in the office at that time as established

by the accused through Ex.D3. When E.x.D3 had been seized by the Respondent-police even on the date of alleged trap, which would show that

the Appellant was not in the office on 17.1.1991 at about 3.00 p.m., the evidence of P.W.2 regarding the demand becomes false. P.W.4 would

admit that he received the daily situation report containing the particulars of the case registered against P.W.2 in Crime No. 217/91 on 17.1.1991

itself. Therefore, the defence theory that the receipt of money by the Appellant towards payment of fine in respect of the above case is probable.

P. Ws.2 and 3 themselves would admit that they were ready to tell lie for the success of the trap. Therefore, their evidence is not creditworthy.

Exs.P3, P6 and the evidence of P.W.4 would clearly show that proper action had been taken by the Appellant on the accident case registered

against P.W.2 on the complaint of one Mani and on being aggrieved, the false case was foisted against him. When the defence theory that the

Appellant received the money for payment of fine from P.W.2 was consistent throughout, the presumption which would arise in this matter has

been rebutted and the defence case has been established through the preponderance of probability.

Mr. Srinath, the learned Government Advocate would, in reply, contend that the evidence of P. W. 1 and Ex. P4 would show that there was a

demand of money on 17th by the Appellant and only on the basis of the demand, P.W.2 came to the Vigilance Office and gave the complaint on

18.1.1991 and as such, Exs.D1 to D3 would not show any conclusive proof that at the time of demand, he was not in the office. He would also

contend that the defence theory regarding the receipt of the money shall be rejected in limine, since not even F.I.R., was registered in the case and

therefore, there was no necessity for payment of fine towards the case in which no investigation was completed. In brief, the learned Government

Advocate would submit that the conviction and sentence imposed upon the Appellant have to be confirmed.

I have gone through the entire records and considered the submissions made by the counsel for the parties.

The learned Counsel for the Appellant would cite the following authorities:

1) Trilok Chand Jain v. State of Delhi (1975 S.C.C. (Cri.) 725);

2) Sita Ram v. State of Rajasthan (1975 S.C.C. (Cri.) 491);

3) Man Singh v. Delhi Administration (1979 S.C.C. (Cri) 528);

4) Suraj Mal v. State (Delhi Administration) (1980 S.C.C. (Cri.) 159);

5) State of U.P. v. Ram Asrey (1990 S.C.C. (Cri.) 604).

It is held in these decisions that the presumption which may arise in the corruption case on receipt of money by the public servant in pursuance

of the demand may be rebutted by the accused by showing a mere preponderance of probability and it is not necessary for him to establish his

case beyond a reasonable doubt.

Furthermore, mere recovery of certain money from the person of the accused without the proof of its payment by the person to whom official

favour to be shown, the presumption cannot arise. In other words, mere recovery by itself cannot prove the case of prosecution against the

accused in the absence of any evidence to prove payment of bribe or the fact that the accused voluntarily accepted the money as bribe.

These principles are settled and there is no quarrel over the prosecution laid down by the Supreme Court. But, it is noticed in these decisions

that while the mere plausibility of the explanation given by the accused in his examination u/s 313 Code of Criminal Procedure may not be enough,

the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the

existence of the fact presumed, improbable.

The above factors have to be taken into consideration, while appreciating the materials available on record in this case.

According to the prosecution, when P.W.2 was driving the motorbike, one Mani, the cyclist suddenly crossed the road in a drunken mood and

dashed against the motorbike and fell down and sustained injuries. On noticing that, P.W.2 on the instruction of the Constables, immediately took

him to the Royapettah Hospital and admitted there. Furthermore, he himself volunteered to come to the Police Station, Traffic Investigation Wing,

Adyar and gave a complaint Ex.P2 regarding the accident. At that point of time, the Appellant, the Sub Inspector of Police told him that a case

would be registered against him. since Mani who was admitted in the hospital sustained injuries due to his rash driving. Accordingly, he was asked

to sign in the bail bond and he was released on bail. The identity card Ex.P7 also was obtained from P.W.2 by the Appellant on 16.1.1991

midnight. In regard to the registration of the case against P.W.2 a situation report had also been sent by the Appellant to P.W.4, the Inspector of

Police. Traffic on 17.1.1991. Ex.P3 notice issued to P.W.2 also would show that P.W.2 was asked to produce the vehicle next day i.e. on

17.1.1991.

These things would reveal that P.W.2 after the accident, went to the hospital and admitted the victim Mani in the hospital and thereafter, he

went and met the Sub Inspector of Police, the Appellant and he was released on bail. But, on 17.1.1991, P.W.2 again wanted to meet the Sub

Inspector of Police, the Appellant, since previous day, he was informed by A2 Selvam, a Constable attached to the Traffic Investigation Wing, told

him that if he could pay Rs. 300/- or Rs. 400/- to the Sub Inspector of Police, the matter would be amicably settled. When P.W.2 informed the

Appellant about the statement of Selvam, the Constable, the Appellant told him that the statement of Selvam was correct and he had to pay Rs.

400/- for not harassing further in the case registered against him and also returning the identify card that he obtained from him.

Only on coming to know that the Sub Inspector himself wanted money from him as bribe for not taking action in the case, P.W.2 decided to

give a complaint to Vigilance, as he was not willing to give any bribe. That was how he came to the Vigilance Office on 18.1.1991 and gave a

complaint at 10.00 a.m.

P.W.3 and P.W.7 would speak about the entrustment of the mahazar. After preparation of the mahazar, the officials and P.W.2 came to the

Traffic Investigation Wing in a Jeep.P. Ws.2 and 3 alone went inside. At that time, the Appellant (A1) asked P.W.2 whether he had brought the

money. Then. P.W.2 took out the currency notes and handed over the same to the Appellant, who, in turn, received it through left hand and put it

in the left side drawer of the table. This was witnessed by P.W.3, who is an independent accompanying witness. Immediately thereafter, the

Appellant again issued another notice Ex.P6 to enable P.W.2 to produce the vehicle to the Motor Vehicle Inspector on the next day. So,the

evidence of P.W.2, P.W.3 and Ex.P6 would clearly reveal that after receipt of money, the Appellant handed over Ex.P6 to P.W.2.

On getting the pre-arranged signal, P.W.7 came inside the Station and on being identified, P.W.7 introduced himself as Vigilance Officer. The

Appellant became pale and speechless. Then, phenolphthalein test was conducted on the fingers of both his hands. The fingers of the left hand

alone were proved positive and there was no change while the right hand fingers were tested. This factor would corroborate the evidence of P.

Ws.2 and 3. who would state that the Appellant received the money by the left hand and put it in the left side drawer of the table.

After phenolphthalein test, the Appellant was asked to remove the money. Then, he took out the money from the left side drawer and handed

over the same to P.W.7. On comparison, the numbers of the currency notes were found tallied. Immediately, thereafter, P.W.4. the superior

officer was informed by P.W.7. He also came and gave a statement to P.W.7 and handed over the case particulars relating to the accident case

registered in Crime No. 217/91 against P.W.2. At that time only, he found out that no F.I.R. was registered. These things would make it clear that

the Appellant received the amount of Rs. 400/- from P.W.2

It is the case of the defence that the Appellant received the said amount towards the payment of fine to be paid in the Court. It is true, as laid

down by this Court as well as the Supreme Court, the presumption can be rebutted by preponderance of probability. But, mere explanation given

during the questioning u/s 313 Code of Criminal Procedure would not be enough to rebut the said presumption.

In this case, it has been established through the evidence of P. Ws.2 and 3 that the amount had been received by the Appellant. As a matter of

fact, when P. Ws.2 and 3 met the Appellant, he asked P.W.2 as to whether he had brought the money. This would mean that the Appellant had

already demanded the money.

It is the case of the defence that the amount was received only towards the payment of fine in connection with the case registered against

P.W.2. This theory cannot be accepted for the following reasons.

Admittedly, the said Mani, who was injured, was in the hospital. The case was registered only u/s 337 I.P.C. Unless the wound certificate is

obtained, the investigating officer may not be possible to know the nature of the injury. If Doctor has given opinion that it is a grievous hurt, the

case would have to be altered into u/s 338 I.P.C. If the victim dies, then section would have to be altered into u/s 304-A I.P.C. and in that event,

the Inspector of Police will have to take up the investigation.

In this case, admittedly, the Appellant was not able to know the nature of the injury. He did not examine the doctor who gave treatment to the

said Mani. No wound certificate was obtained. Not even a F.I.R. was registered as admitted by P.W.4 At that stage, it would not be possible for

fixing the amount of fine. Moreover, the punishment in the form of fine or imprisonment to be imposed on the accused is a question to be decided

by the Court. Therefore, even without finishing investigation and without deciding the nature of offence committed by P.W.2. it would be

preposterous to say that the said amount was collected towards the payment of fine.

Yet another artificiality in the defence theory is. at this juncture, to be noticed.

According to the Appellant, he was never met by P.W.2 on 17.1.1991 at 3.00 P.M. But, the fact that P.W.2 met the Appellant on 16.1.1991

midnight was accepted. It is not the case of the Appellant that at that time i.e. on 16.1.1991 midnight, P.W.2 was asked by the Appellant to come

with money for payment of fine in the Court on his behalf Nowhere in the cross-examination and the statement u/s 313 Cr.P.C, the Appellant

stated that P.W.2 was asked to bring the money for payment of fine.

Under those circumstances, the defence theory, which is not only improbable but also quite artificial, has to be rejected. On the other hand, the

evidence of P.W.2, P.W.3. P.W.4, and P.W.7. which is corroborated by the other documentary evidence such as Exs.P2, P3, P6 would

conclusively prove that the amount was demanded only as bribe for not harassing P.W.2 further. Exs.D1 to D3 cannot, in my view, conclusively

prove that the Appellant would not have been in the Station at the time of demand, in view of the explanation given by P.W.4.

Moreover, the substantive evidence of P.W.2 with reference to his meeting the Appellant and demand made by the Appellant can be accepted

to be true, since, he has to be considered as a truthful witness, as he had taken immediate steps to take the victim to hospital and then, voluntarily

came to the Police Station to inform the police about what really happened.

Under those circumstances. 1 do not find any merit in the appeal. Consequently, the appeal is dismissed confirming the conviction and sentence

imposed upon the Appellant.